Njeru Kirumbi v Justa Ngai Nyaga & another [2020] KEELC 2062 (KLR)
The bottom line
#Kenya's Environment and Land Court nullified a tribunal award that stripped a registered landowner of his title because the tribunal had no power to decide land ownership cases.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the defunct Land Disputes Tribunals over claims to title of registered land
The Tribunal had no jurisdiction to entertain the 1st Defendant's claim because its enabling statute limited it to boundary disputes, claims to occupy or work land, and trespass, not adjudication of title
The Tribunal was a creature of statute established under Section 4 of the repealed Land Disputes Tribunals Act, 1990, with jurisdiction confined to Section 3(1). At the time of the award the Plaintiff was the registered proprietor, and the award sought to deprive him of title and confer it on the 1st Defendant. That was outside the statutory list, so the award was a nullity, agreeing with the Court of Appeal in Joseph Malakwen Lelei.
Violation of the right to be heard before the Tribunal
The Plaintiff, the registered proprietor, was never summoned or notified and was condemned unheard, violating the rules of natural justice and rendering the award null and void
The Tribunal proceedings showed the Plaintiff was not a party despite being the registered proprietor at the material time. He was never summoned or notified by the Tribunal or the claimant. The 1st Defendant's excuse that he did not know the Plaintiff because he conducted no registry search was dismissed as lame. The court adopted the reasoning in Eunice Muthoni Gatugi that condemnation unheard renders a decision ultra vires, null and void.
Whether the 2nd Defendant proved her counterclaim
The counterclaim was dismissed because the 2nd Defendant did not prosecute it and failed to demonstrate it, and restitution after a reversed decree lies under Section 91 of the Civil Procedure Act, not a fresh suit
The 2nd Defendant did not attend court to prosecute her counterclaim and her advocate's adjournment application was rejected; the Plaintiff admitted no part of it. The court held that a party who succeeds on appeal should seek restitution from the court which passed the decree under Section 91, and that filing a fresh suit for restitution is impermissible.
Costs of the suit and counterclaim
Costs follow the event; the Plaintiff got costs against the 1st Defendant only, with no order as to costs on the dismissed counterclaim
Invoking the proviso to Section 27 of the Civil Procedure Act and Hussein Janmohamed, the court held costs follow the event. Because the Plaintiff had discontinued against the 2nd Defendant and she never prosecuted her counterclaim, the Plaintiff's costs are borne by the 1st Defendant only, and the counterclaim dismissal carries no order as to costs.
Legal principles established
#- A tribunal exercising only statutory jurisdiction cannot adjudicate questions of title to registered land; proceedings and decisions made without jurisdiction are null and void
- A decision made in violation of the rules of natural justice, condemning a party unheard, is null and void
- Restitution where a decree is varied or reversed on appeal must be obtained by application under Section 91 of the Civil Procedure Act, not by a fresh suit
Court orders
#- 1.A declaration that the award of the Mbeere Land Disputes Tribunal in Tribunal Case No. 213 of 2001 awarding the 1st Defendant Title No. Nthawa/Riandu/2335 is null and void and is varied to exclude Title No. Nthawa/Riandu/2335
- 2.The judgment adopting the award as a decree in Siakago PMC LDT Case No. 4 of 2007 is varied to exclude Title No. Nthawa/Riandu/2335 as part of Title No. Nthawa/Riandu/1941
- 3.The order and decree in Siakago LDT No. 4 of 2007 registered against Title No. Nthawa/Riandu/2335 be expunged from the relevant land register
- 4.The 2nd Defendant's counterclaim is dismissed with no order as to costs
- 5.The Plaintiff is awarded costs of the suit to be borne by the 1st Defendant only
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution establishing the Environment and Land Court (first-instance land dispute); reliefs framed under the Civil Procedure Act and repealed Land Disputes Tribunals Act, 1990
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njeru Kirumbi v Justa Ngai Nyaga & another [2020] KEELC 2062 (KLR)", Case Analysis (2020). E.L.C. Case No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2062/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.